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In Reply to: RE: Technology as a driver of Law posted by middleground on March 12, 2015 at 05:49:01
And it seems possible to me that the trial result was faulty, but not for reliance upon sheet music.
In all matters of art, the problem here is, "What is Plagiarism?" I had a Literature teacher who used to say, "There are only two story lines. Either, a stranger comes to town, or, someone we know goes somewhere new."
How many stories line up with the template of "The Hero's Quest?" Don't all Romantic-era piano Nocturnes sound more alike than different? But did Debussy "Plagiarize" Chopin???
Courts are obviously at a loss to deal with these fine points, so what seems to me to happen is that they pass the buck to expert witnesses for both sides, and then rely upon the definition of pornography as, you know it when you see it.
It seems to me beyond question that "My Sweet Lord" owed an unconscious debt to "He's So Fine," and an even stronger case is Radiohead's "Creep" having been unconsciously written so that the bridge to "All That I Need (Is the Air That I Breathe)" resolved the harmonic tension.
But once you leave the Platonic Ideal of the sheet music behind and begin judging by the orchestration for lack of a better word of one recording, such as, well, here is a blatty sax solo, the door is open for all sad love songs to sue each other.
Ciao,
jm
Follow Ups:
That's why the law is not based on such ambiguities, and there are clear, quantifiable criteria for what is copyrighted.
I expect appeal will be successful.
Dave
Hi-
In the first instance, unless a legal error was objected to at trial, you have waived your right to appeal. There are exceptions, but as a general rule, to appeal a legal error you have to have given the trial court notice and an opportunity to correct itself.
Secondly, in this case, a smart plaintiff would have a backstop argument that if there was legal error, it was harmless, because the same result would have been reached under the rules applied in and approved in the "My Sweet Lord" case, so, any wayward jury instructions were harmless error.
So, from the get-go, suboptimal trial work on defense and/or good appeals work by plaintiff means "Hard cases make bad law."
I say all this having practiced trial work (including patent and copyright litigation), and I am exceedingly aware of the folk wisdom among some trial lawyers that if you place too many objections, the jury will turn on your client and the case is lost anyway. Who knows if that happened here? Daily transcripts, please... .
I once participated in a huge wrongful-death case (the judgment was $19 million) where a co-defendant did not join in a critical pre-trial motion because co-counsel was terrified of making the judge, erm, do his job. As in, making legal rulings and stating his reasons so they can be reviewed on appeal.
Our Supreme Court indicated that they thought the Due Process issue I had seen that nobody else had seen had merit, and even if our Supreme Court had not, we by that time had picked up a deep-pockets amicus curiae ready to take it to the US Supreme Court, and our having that appeals issue that the co-defendant did not, shifted the payment liability division in our client's favor by US$7 million on the settlement reached on appeal.
Not to brag, just sayin' that unless you were a fly on the wall from Day One, I think that assuming any appeal will prevail is like unto assuming that all men are gentlemen, all women ladies, and all brides virgins.
People make judgment calls. And bad judgment calls do not cancel each other out, they trigger a "failure cascade."
ATB,
John Marks
PS: You might want to look into the Baroque music "copyright infringement" case that nearly put Hyperion Records into administration (UK Bankruptcy). I would have given the same advice they got from their lawyers, but... events overtook, didn't they?
I'm not as sure from a standpoint of technicalities of trial proceedings, as obviously I wasn't there. Having said that, there is no reasonable explanation from the standpoint of copyright law as it applies to music for the verdict other than misunderstanding/misapplication of the law, something also reflected in the writing of the NYT article.
Dave
I think the NY Times writer is muddling together several separate (though potentially legitimate) issues, resulting in a confused and confusing article. From a legal standpoint, as you say, you need to be able to clearly document what is original about your product to get copyright protection. And indeed, the operative issue is how the product is original, not how it is similar to earlier products. Originality is not supposed to be a particularly high barrier to clear,and I agree with you that the decision in this case seems wrong.
Obviously, the system of notation you use has to be capable of capturing what is original about your music. As I mentioned in the example I gave below, notation systems can become inadequate and obsolete. But that is a second, separate issue.
A third issue is whether the whole concept of copyright protection needs to be reconsidered in the digital age. The federal government has already answered "yes" to that question, though the current direction is controversial in some quarters.
So there are at least those three issues behind the Times article, and probably more.
"Obviously, the system of notation you use has to be capable of capturing what is original about your music. As I mentioned in the example I gave below, notation systems can become inadequate and obsolete. But that is a second, separate issue."Where notation is inadequate a recording should suffice as documentation of a composition. In a discussion elsewhere on the topic, someone metioned that in this case the recording was off limits in the trial because the Gaye family does not own the master of the recording and there are elements of the recording that are not copyrighted (the latter is true of sheet music too..). If a change is needed, to whatever extent a recording can not serve as documentation of a composition that would be the change I would make.
The link has evidence presented in the trial of the similarities argued by the Gaye estate, and it is absolutely laughably absurd. Whatever Thicke/Williams paid their defense team, they need their money back.
Dave
Edits: 03/13/15
The underlying problem is jury trials in civil matters.
The old darlings so often haven't a clue.
that some copyright law commentators are arguing for a more stringent originality standard for music. It's part of a movement since the internet came to the fore of greater copyright protection, lobbied for aggressively by the established pre-internet content owners like Disney.Could we get to the point where the Monk estate claims Charade sounds too much like 'Round Midnight? (Just kidding!)
Edits: 03/14/15 03/14/15
Just sayin'.
jm
And John Williams' Theme from Jaws sounds like the Sacrificial Dance from the Rite of Spring. And Andrew Lloyd Webber's I Don't Know How To Love Him sounds like the 2nd movement of the (public domain) Mendelssohn violin concerto. And Come Together sounds like You Can't Catch Me. But none of those was plagiarism or copyright infringement, imho.
... I'll Be Seeing You sounds like the last movement of Mahler 3..
nt
To be specific, I'm talking about a minute in to the sixth movement.
Dave
He, of the, "the law is a living crystal blah blah blah."
jm
I really don't watch anything.
JM
Here is the only good thing associated with that program.
"Better Call Saul" is a current television series on AMC which grew out of their very successful previous series, "Breaking Bad" (which itself won all kinds of awards, kudos from critics and viewers, etc.). Per Wikipedia, the debut episode of "Better Call Saul" set the record for the highest-rated scripted series premiere in basic cable history.
It deals with a scheister lawyer, Jimmy McGill, whom, despite his venality, you find yourself rooting for. At a later point in the series, he will change his name to Saul Goodman (hence, the series title). Although there are many comic episodes (as when McGill's schemes backfire), the general tone of the series is deeply serious. In fact, in terms of tone, I find it similar to the 1993 Michael Douglas film, "Falling Down" - one of my favorite films of all time.
If you or anyone else ever get(s) interested, the series will probably appear on Netflix at some point - which will allow for binge watching and catching up. The current first season of ten episodes is a little over half done right now.
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